An email arrives at 4:45 on a Friday. A shift lead at your Brampton distribution centre says a supervisor has been sending her messages for months, and she attaches screenshots. She asks you not to tell anyone. Your instinct might be to call the supervisor in and hear his side, or to wait until Monday and see whether things cool off. Either step could make matters worse.
Under Ontario law, an employer that learns about possible workplace harassment generally has a duty to look into it, even if the worker asks you to drop it and even if nobody files a formal complaint. Investigations can also be needed for theft, safety breaches, discrimination, or falsified records. They are stressful and take time away from running the business. A fair, documented process is also one of the best protections an employer has when a dispute later reaches a court, the Human Rights Tribunal, or a Ministry of Labour inspector.
This article gives general information for provincially regulated Ontario employers. It is not legal advice. Federally regulated workplaces, including many interprovincial trucking companies operating out of Peel, follow the Canada Labour Code and its own harassment and violence rules, and unionized workplaces must also follow their collective agreements.
When the Duty Arises
The Occupational Health and Safety Act (OHSA) requires employers to ensure that an investigation “appropriate in the circumstances” is conducted into incidents and complaints of workplace harassment. The definition of harassment is a course of vexatious comment or conduct against a worker that is known, or ought reasonably to be known, to be unwelcome. Workplace sexual harassment has its own definition. Both expressly include conduct carried out virtually, through information and communications technology, so a group chat or a late-night text can count just as readily as something said on the shop floor.
Reasonable management action, such as a performance review or legitimate discipline, is not harassment under the OHSA. A complaint that seems to be about ordinary management still deserves a look, though, because it may be more than that when you examine it.
The Human Rights Code separately protects workers from harassment and discrimination based on grounds such as race, sex, disability, creed, age, and family status. Employers can face liability for failing to respond adequately, so the quality of the response is itself an issue. A worker generally has one year to apply to the Human Rights Tribunal of Ontario, and an inadequate investigation may become part of the case.
Know also that an inspector can order an employer to have an investigation conducted by an impartial third party at the employer’s expense. The Ministry’s Code of Practice to Address Workplace Harassment sets out guidance on what compliance can look like, and much of what follows draws on it.
The First 48 Hours
Early handling often sets the tone. In the first day or two:
- Acknowledge the complaint in writing, thank the person, and explain what will happen next.
- Check for urgent safety concerns. If violence is a possibility, deal with that immediately, and contact police when appropriate.
- Preserve evidence. Put a hold on deleting email, messaging data, camera footage, and access logs. Security video often overwrites itself within days, so this step is especially time-sensitive.
- Consider interim measures. Changing a reporting line, adjusting a shift, or placing someone on paid leave can protect people while the process runs. Avoid moving the complainant in a way that feels like punishment, since it may look like retaliation.
- Limit who knows. Tell only those who truly need to know. Remember that the OHSA program must explain how information will be kept confidential, except where disclosure is necessary to investigate or take corrective action, or where required by law.
- Warn against reprisal. Tell everyone involved that retaliating against someone for raising a concern or taking part in the process is prohibited.
As for a worker who asks that nothing be done, you cannot promise absolute confidentiality or agree to ignore it. Explain why, tell them what you will do to protect them, and proceed in a way that is sensitive to their concerns.
Choosing the Investigator
The Code of Practice sets out some basics. The investigator must be objective, must not be the alleged harasser, and must not be under that person’s direct control. They also should not have been directly involved in the incident or complaint. Where the allegation concerns senior leadership, including a president or owner, the guidance calls for an external investigator.
This creates a real difficulty for a small Brampton company, where the owner, the manager, and the HR person may all be the same individual, or close relatives. If the alleged harasser is the owner’s son, an internal review may have little credibility, however honest it is. Your options are generally as follows.
An internal person suits simpler matters where someone with training and enough distance is available. It is inexpensive, but it can look less impartial.
An outside workplace investigator brings independence and skill, and may be the better option for serious allegations, senior respondents, or a likely lawsuit. Check credentials. Ontario’s Private Security and Investigative Services Act, 2005 regulates people who conduct investigations for pay. Lawyers acting in the practice of their profession are outside that Act, but a non-lawyer consultant may need a private investigator’s licence. Ask before you hire.
An outside lawyer may conduct the investigation or advise you while someone else does. Those are different roles. A lawyer who acts as a neutral fact-finder and later serves as your advocate may create problems, and may even become a witness. Claims of solicitor-client privilege over an investigation report are also uncertain, particularly when the employer relies on the report to defend itself. Decide at the beginning what the investigator’s role is, and draft a clear written mandate.
Running a Fair Process
A workplace investigation is not a trial, and it does not need the formality of one. It should, however, be fair, timely, and focused.
Set the scope. Write down the allegations to be examined. Vague mandates produce vague reports. If new allegations arise along the way, record that you have widened the scope.
Interview the complainant first. Use open questions: what happened, when, where, who was there, was anything written or sent? Ask what outcome they are hoping for, and collect their documents.
Give the respondent a real opportunity to respond. This is where fairness is usually won or lost. The person needs to know the substance of the allegations in enough detail to answer them, including dates and specifics. An ambush can damage the credibility of the whole exercise and may support a later claim. Give reasonable notice of the meeting, and allow them to bring a support person if your process or a collective agreement allows it.
Talk to witnesses and gather records. Keep witness interviews tied to the issues. Text messages, schedules, timecards, access logs, and video are often more reliable than memory.
Keep careful notes. Have each person review and sign a statement or the notes where practical. Tell them not to discuss their evidence with other witnesses, but be careful about imposing a blanket gag, since workers have legal rights to speak to authorities, unions, and their own advisers. In Ontario, a participant in a conversation can generally record it lawfully without telling the others, so behave as though everything said might be played back later.
Language matters, too. In a workplace where many staff speak Punjabi, Hindi, Urdu, or Gujarati as a first language, offer a neutral interpreter rather than relying on a co-worker or a relative, especially when words said in another language are themselves part of the complaint.
Making Findings
Investigators use the civil standard: is it more likely than not that the thing happened? When accounts conflict, which is often the case because no one else was there, a finding can still be made by weighing credibility. Look at whether the accounts are consistent over time, whether documents support them, whether either person has reason to shade the truth, and whether the version given makes sense in context. A statement that “it’s he said, she said, so nothing can be determined” is frequently a weak conclusion.
Findings should be about facts and policy. Did the conduct occur? Does it meet the definition in your policy or the OHSA? An investigator does not need to pronounce on legal liability, and a report that does so may cause problems later.
Timelines, Written Results, and Records
The Code of Practice sets practical benchmarks:
- The investigation should be finished within 90 days, unless extenuating circumstances such as many witnesses or a key witness’s illness make it longer
- The results, and any corrective action taken or to be taken, should be given in writing to the worker who complained and to the alleged harasser, if a worker of the employer, within 10 calendar days after the investigation ends
- Records should be kept for at least one year from the conclusion, including the complaint, notes, witness statements, the report, the results given to the parties, and any corrective action
Many employers would be wise to keep these records longer, particularly when a human rights application or a lawsuit could follow, but take advice on your retention approach.
The OHSA does not necessarily require giving people the whole report. A summary that clearly describes the result and any corrective action usually meets the requirement while protecting witnesses. Do think about how the summary is worded. “Not substantiated” should not read as “you lied,” and honest complaints that are not proven are not a basis for discipline.
What Comes After
An investigation that ends in a filed report with no follow-up achieves little. Responses should fit the findings and may range from coaching and training to a written warning, a reassignment, or dismissal. Consider past conduct, the seriousness of what happened, and any power imbalance. Before terminating anyone for cause, get advice, because the legal standards for avoiding termination and severance pay are high and a flawed investigation can lead to significant damages. Our corporate law page describes how these decisions connect with employment contracts and policies.
Check in with the complainant a few weeks and a few months later. Reprisal often appears slowly, through bad shifts, exclusion, or sudden performance concerns. The OHSA prohibits reprisal against a worker for acting under the Act, and the Human Rights Code and Employment Standards Act have their own protections.
Then ask what the case reveals about the workplace. Was the policy understood? Did a supervisor see the conduct and stay silent? Does a worker have someone to report to other than the alleged harasser? The harassment policy and program must be reviewed as often as necessary and at least annually, so a real incident is a good reason to revisit them.
Mistakes That Tend to Cost the Most
Some errors recur again and again:
- Deciding the outcome first and collecting supporting evidence afterward
- Letting a friend or relative of the respondent run the process
- Never giving the respondent the details of the allegations
- Leaving a complaint sitting for months
- Wiping a departing employee’s phone or letting video overwrite itself
- Promising complete confidentiality, then being unable to keep the promise
- Firing the complainant shortly after a complaint, even for an unrelated reason
- Writing casual emails about the case that later have to be produced in a lawsuit
Most of these can be avoided with a little preparation. A short internal procedure and a named outside contact, set up before anything happens, can make a difficult week much easier to manage.
If you have received a complaint, or a former employee’s lawyer has already written to you, it may be worth getting help scoping the process before the first interview. You can reach out to the firm to discuss how to proceed. Any litigation that follows may involve business litigation questions as well.